Civil Contract Law

CIVIL CONTRACT LAW CONTRACT LAW

Classification of legal systemes

There are lot of civil rules. The common law: no written rules and the law is mostly based on cased law (jurisprudence). Civil law derives from roman law (civil law).

Roman law is also based on cases law. It is the ancestre of civil:

Mostely based not on written act (loi écrite) but on cases (litigation, law decisions).

In the US, statut law (loi écrite), in GB (act law).

Specificities: England (non-UK).

The legal systems are very different in UK. English law is the law of England and of Wales. And the US law derives from the English law (from the interpretation of English law), has been based on the book.

Canadian law: Quebec (civil law, French and English). Other (common law systems)

Australia: very similar from the English system (modification from a English book)

Indian Law (for contract law), New Zealand law, Nigeria

Most of these countries has been colonized from French and English law. In Common Law Case law (jurisprudence) → must important source, even if there are legislations. Legislator intervene on more specific issues of cases. Once the course has taken, the decision can’t be changed (not has France).

Common law cannot change; it can change in some cases but it is very difficult. (appeal system?)

Contrary to civil law, not based on principles: the law is found in comparing the fact of all the cases reported or decided. So you don’t have to look for a code, and search a fact, reports of cases that have been published to know the issue and find the case that matches the fact. There are written rules in some special cases, there are not general rules but solution to particular fact, that we can deduce the rule from the case.

So judges has their important: very famous. There is no need like in France to write more arguments like in France (moyen de pourvoi). They are many reference to other cases, and explain the difference of solution if there is but the more interesting thing has been said from the former decisions.

English law → very great influence (Canada, NZ, Australia doesn’t have a supreme court before → taking decisions of England supreme court).

Important characteristic: rule of precedent → has been applied by higher jurisdiction or similar on similar facts by judges. The legal rule if we have similar fact: the same rule should be applied → said by the supreme court.

Limitation: If the facts are different (but can be if the former decision has been bad). Before 1966 it was impossible to change the solutions applied formally.

There are been some attends to codify laws. (uniform commercial code: Banking…) → contract Law.

In the US: Federal written rules (commercial, properties).

Difference England US: rule of precedent more flexible in the US (not as strict). The American Law institute → mission: reexplain the Law “official codification” → “doctrine”: restatement of the Law.

Unclassable legal system:

There are more difficult to put in classification because we don’t know them well. → Scottish Law (influence common law but civil law too, combine the two).

Quebec: mix of the two

South Africa

Israel

Malta

Botswana

→ Both characteristics.

Other Categories:

 Islamic, Hindu Law… Asian Laws (influence by Confucianism).   Traditional Laws.

Most of the countries have been influenced by colonization. And globalization has a role to play too.

One attempt of evolution: UE contract law → improve commercial relationships and efficiency of business.

Historical approach: they use to be European private law: common rules (middle ages: roman law → very important role in this concept. Codification of French, German Laws… Roman Law which is a common base of contract Law with canonic law → importance of the influence: persons. Roman law: property …

Perspective approach: Influence by fundamental writes (DDHC, CEDH… European principles human rights). More and more countries which has a way to control the respect of constitution. The same for the European instances (consumer rights).

The European commission → project on sale of goods.

2ND PART of the introduction

GENERAL PRESENTATION OF CORPORATIVE LAW: ENGLISH LEGAL SYSTEM:

Law in England is very different of the other isles (Scotland: civil law w/ common law, Ireland…) In Wales → identical (based on the common law).

We will be focused on the English legal system (England and Wales).

Influence of canonic Laws and roman law. In 1066 → quest of England: New legal system (every complain must be made to the king and his council) → Creation of Common law which must be common (common to all the country). It works like Roman law → substantives and procedural law. A “writ” → register all the facts that could give right to a justice action. → Give permission or not.  Even today, in US → “A writ” → permission for the case.

The traditional solutions in common law (the general legal system of England; second definition: the same law for the country). The only way to make the contract perform is to give damages (hypotheses of sell of motorcycle but the guy doesn’t want to pay → damages).

The Chancery court: → application of common law. Create an injunction in contract case.

→ Not common law strictly spiking: another system on law → Called EQUITY: more fair, the idea: get an appropriate act to solve the problem. Most of the rules: common law, but some are from the equity.

Exception: system of trust.

The problem: until 1873, the court that apply common law and Equity were not the same. Equity: Chancery court. The rules of Equity Shall prevail.

Legislation in English Legal system:

Much of the Laws: Case law. In France: Code

Doesn’t mean that legislation isn’t important. Legislative source remains more important. Case law has been amended, since 1966 possibility for the house of lords to overrule the decision → have another solution.

Mercredi 18/01

The way English and French Draft legislation are different. English are more precise. Example for Stipulation pour autrui (18 words) In England (more than 300 words) → Large more precise. English lawyers for example write more pages on contracts.

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